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Right to Maintenance Under Criminal Law -I a Critical Study

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Right to Maintenance Under Criminal Law -I a Critical Study RIGHT TO MAINTENANCE UNDER CRIMINAL LAW -I A CRITICAL STUDY Thesis submitted to the Cochin University of Science and Technology for the Award oi the Degree oi DOCTOR OF PHILOSOPHY Bv D.SANKAR Under the Supervision of Dr. G. SADASIVAN NAIR" SCHOOL OF LEGAL STUDIES COCIIIN UNIVERSITY OF SCIENCE AND TECHNOIOGY COCIIIN DECEMBER I999 Dr. G. SADASIVAN NAIR Prof. and Director School of Legal Studies Cochin University of Science and Technology Cochin. CERTIFICATE OF THE SUPERVISING TEACHER Certified that to the best of my knowledge the thesis, “RlGHT TO MAINTENANCE UNDER CRIMINAL LAW - A CRITICAL STUDY” is the record of bonafide research work carried out by Mr. D. Sankar in the School of Legal Studies, Cochin University of Science and Technology, under my supervision. Place : ‘Cochin __,,._ Q37 '1"?, Date 9.0 r V3/cl C‘ Dr. ca. SADASIVAN NAIR, Supervising Teacher CERTIFICATE Certified that the Important research findings included in this thesis “RIGHT TO MAlNTENANCE UNDER CRIMINAL LAW - A CRITICAL STUDY" have been presented in the research seminar held at the School of Legal Studies, Cochin University of Science and Technology on 23'“ December 1998. Signature§,/ of the Candidate Countersigned C21»?/@»~» Director School of Legal Studies Cochin University of Science and Technology Cochin. Place : Cochin Date : 9\¢9"i'7-Fl? iii ACKNOWLEDGEMENTS I Place my first and foremost words of thanks to my supervising teacher Dr. G.Sadasivan Nair, LL.M., Ph.D., the Director, School of Legal Studies, Cochin University of Science and Technology, Cochin. 1 express my sincere and deep sense of gratitude to him for his guidance at every stage of this work, starting from charting out the course of work, going through the manuscripts and suggesting improvements. My heartfelt thanks are due to him. I thank Prof K.N. Chandrasekaran Pillai, B.Sc., LL.M., SJD, Cochin University of Science and Technology, Cochin who gave me the inspiration and shared time for discussion over varying points of this work. I thank also all the Professors of the Faculty of Law in Cochin University for their kind support in iny regard. I thank Dr. S.G. Bhat, M./1., LL.M., Ph.D., my Teacher and Principal, Dr.Ambedkar Govt. Law College, Pondicherry, but for whose guidance and assistance, the work may not have been taken and completed. My thanks are due to Dr. K. Chandrasegaran, M.L., Ph.D., my colleague and Lecturer, Dr./imbedkar Govt. Law College, Pondicherry who had been with me all through this work and has also provided the moral support. I extend my thanks to Dr. Vany Adithan, M.A., M.L., Ph.D., Lecturer, Dr./imbedkar Govt. Law College, Pondicherry for providing me the inspiration and valuable assistance. 1 thank again Dr.K.Chandrasegaran, Dr. Vany Adithan and Thiru.R.Ananth, MA.B.L., for having gone through the manuscripts and corrected the same. iv I thank also the Judicial Members of various Courts at Cuddalore and Villupuram Districts, Tamil Nadu and the Family Court Judge, Pontiicherry who helped me in the collection of materials and completion of this work. I thank all the stafl of the Library and Office at Cochin University and also the stafl at Dr./Imbedkar Govt. Law College, Pondicherrjv for their co-operation in my use of the Library. My thanks are due to Mr.S.Mourougayan, M.A., K.Ramesh, M.A. and D.R.Saravanan, Microsecond Computer Center, Pondicherry who helped in typing out the matter to bring this in form. 1 thank also others who helped me in various ways for the successful completion of this work. @. San/ea/v v CHAPTERCONTENTS PAGE No.1. INTRODUCTION No. 1-13 MAINTENANCE - AN OBLIGATION ARISING OUT OF MARRIAGE MAINTENANCE - A SOCIAL CONCERN MAINTENANCE - THE LEGAL CONCERN MAINTENANCE - A RIGHT UNDER CRIMINAL LAW OBJECT OF THE STUDY METHODOLOGY ADOPTED SCHEME OF THE STUDY 2. MAINTENANCE AS A BASIC HUMAN RIGHT 14-43 2.1 HUMAN2.1.1 RIGHTS U.N. - EVOLUTION Charter AND GROWTH 18 15 2.1.32.1.2 Universal International Declaration ofBill Human of RightsRights 1948 20 19 2.1.42.1 The.5 Regional Convention on Conventions the Rights of Child 25 22 2.2 RIGHTS PROTECTED UNDER THE CONVENTIONS AND COVENANTS 28 2.2.12.2.2 Right Protection to Life as of a theHuman Family Right 3230 2.2.3 Protection of the Rights of the Children 33 2.3 ENFORCEMENT2.3.1 Mechanism OF for HUMAN Enforcement RIGHTS 3534 2.3.32.3.2 TheEffect Indian of Enforcement Experience 3638 2.4 MAINTENANCE - A HUMAN RIG-HT AS WELL 39 3. MAINTENANCE AS A CONSTITUTIONAL OBLIGATION 44-54 3.1 3.1.1THE CONSTITUTION The Preamble OF INDIA 45 44 3.1.33.1.2 FundamentalDirective Principles Rights 4846 3.23.3 FUNDAMENTAL TOWARDS RIGHTS SOCIAL VIS A I/IS DIRECTIVE JUSTICE PRINCIPLES 52 51 4. RIGHT- THEOF MAINTENANCE CONCEPTUAL UNDER THE CODE PERSPECTIVES OF CRIMINAL PROCEDURE 55-87 4.1 THE CODE OF 1973 - INCEPTION 56 4.2 MAINTENANCE4.2.1 Scope ofUNDER the ProvisionSECTION 125 59 57 4.2.34.2.2 NatureMaintenance of the Proceeding- Meaning 6160 vi i—<\¢—L-L-\—B_.L \IO3U‘l-I>(»JI\)—> oo--»c0J>oor\J-=­ 4.3 PARTIES4.3.1 Wife’sENTITLED Right TO CLAIM of OFMaintenance MAINTENANCE 62 61 4.3.34.3.2 Children'sParents‘ Right Right of of Maintenance Maintenance 8175 RIGHT TO MAINTENANCE: PROCEDURAL HURDLES AND SOCIAL REALITY 88-151 5.1 BASIS OF THE CLAIM 88 5.1.25.1.1 Inability Sufficient to Maintain Means 9189 5.25.2.1 JURISDICTION Jurisdiction of the Magistrate Court 95 95 5.2.2 Jurisdiction of the Family Courts 96 5.3 THE5.3.1 PROCEDURE Award FOR of CLAIM Maintenance OF MAINTENANCE 106 106 5.3.25.3.3 AmountInterim of Maintenance Maintenance 107109 5.3.45.3.5 Execution Date of the of Order Effect of Maintenance 1 13 114 5.55.4 TERRITORIALPRESENCE OF JURISDICTIONTHE PARTIES 123120 5.6 ALTERATtON OF MAINTENANCE 127 5.7 RIGHTUNDER OF MAINTENANCE OTHER UNDER SECTIONPERSONAL 125 VIS-A-VIS LAWS RIGHT 130 5.8 COPY OF THE ORDER OF MAINTENANCE 131 5.9 CIRCUMSTANCESMAINTENANCE THAT DISENTITLE THE RIGHT TO OF WIFE 132 5.9.15.9.2 Refusal Living to Live In with Adultery her Husband 132 143 5.9.3 Living Separate by Mutual Consent 144 5.10 CANCELLATION OF THE ORDER 144 5.125.11 REVISION WORKING OF THE ORDEROF THE OF MAINTENANCE SYSTEM 145 144 -RIGHT HINDU TO MAINTENANCE AND UNDER PARSIPERSONAL LAWS LAWS 152-186 6.1 UNDER HINDU LAW 153 6.1.1 Right to Maintenance under Ancient Hindu Law 154 6.1.2 Statutory Intervention: Pre-codification Laws 162 6.1.3 Maintenance under Codified Hindu Law 164 6.2 MAINTENANCE UNDER THE LAW OF PARSIS 182 —RIGHT MUSLIM TO MAINTENANCE AND UNDER CHRISTIAN PERSONAL LAW LAWS 187-222 7.1 MAINTENANCE UNDER MUSLIM LAW 187 7.1.27.1.1 Parties ConceptofMaintenance Entitled to Maintenance 191 192 vii 7.1.3 Quantum of Maintenance 211 7.1.4 Mode of Payment 211 7.2. MAINTENANCE UNDER CHRISTIAN LAW 211 7.2.1 Christian Law of Marriage 212 7.2.2 Law of Maintenance 219 LAW OF MAINTENANCE IN ENGLAND 223-260 8.1 PARLIAMENTARY JURISDICTION OF MAINTENANCE 226 8.2 ALIMONY BEFORE ECCLESIASTICAL COURT 227 8.3 MAINTENANCE BEFORE SECULAR COURTS 228 8.3.1 Right Under Matrimonial Causes Act 1857 228 8.3.2 Matrimonial and Family Proceedings Act, 1984 234 8.3.3 Right Under the Amended Act 235 8.4 MAINTENANCE BEFORE MAGISTRATES' COURT 240 8.4.1 Domestic Proceedings and Magistrates‘ Courts Act 1978 244 8.5 WELFARE BENEFITS 259 LAW OF MAINTENANCE IN FRANCE 261-281 9.1 CONCEPT OF MARRIAGE 261 9.2 OBLIGATIONS ARISING OUT OF MARRIAGE 268 9.3 MATRIMONIAL REGIMES 270 9.3.1 Marriage Contracts and Matrimonial Property Systems 271 9.3.2 Community Property 272 9.4 SYSTEM OF PARTICIPATION IN ACQUIRED PROPERTY 278 9.5 MAINTENANCE BEFORE THE CRIMINAL COURT 280 CONCLUSION AND SUGGESTIONS 282-302 10.1 THE STATE - TO PROVIDE SOCIAL SECURITY 298 10.2 NEGLECT — TO BE A CRIME 299 10.3 TOWARDS THE EMANCIPATION OF WOMEN 299 10.4 UNIFORM CIVIL CODE 300 ANNEXU10.5 TOWARDS STREAMLINING SECTION RES 125 303-359301 INDEX OF CASES 360-367 INDEX OF STATUTES 368 ABBREVIATIONSBIBLIOGRAPHY 370-379369 viii CHAPTER ONE INTRODUCTION ‘The greatest happiness of the greatest number is the basis of judging the social, economic and political policies of a nation’, asserts the principle of Benthemite. All human beings possess an equal capacity for pleasure and pleasure gets doubled when human care for each other. Therefore, a more desirable society is one where human beings work for one another and enjoy the pleasure derived from mutual co-operation and love. The basic social unit wherein we could observe the pre requisites of a welfare society is family. Family is described as a ‘natural ethical community’.' The family is natural because its bonds are based on feelings that are intutive and immediate. It has an ethical quality because the love that it imparts has an universal and spiritual quality. For proper and wholesome development of both men and women in a family, marriage is a must. Marriage, as an institution is necessary for the procreation of human race. Marriage as such gives the married partners, a status and impose mutual obligations and rights. The prime obligation that arises out of marriage is maintenance. 1.1 MAINTENANCE - AN OBLIGATION ARISING OUT OF MARRIAGE The first man of this universe had no obligation as against other members.
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